Annulment of award of highway maintenance contract MI62 to SA Krinkels — performance thresholds set retroactively and arbitrarily by SOFICO for price examination of SA A2 violate patere legem quam ipse fecisti and transparency principles — shortened annulment procedure after suspension
The Council of State annulled, through the shortened procedure of Article 17 §6 of the coordinated laws, SOFICO's decision to award the MI62 highway maintenance services contract (brushing, cleaning, green space maintenance) to SA Krinkels and to declare SA A2's bid irregular, on the ground that SOFICO had retroactively and arbitrarily set performance thresholds (post 81) and duration thresholds (post 82) that modified the scope of the tender requirements in violation of patere legem quam ipse fecisti and transparency principles.
What happened?
SOFICO tendered highway maintenance services (brushing, cleaning, green space upkeep). Three bidders submitted offers. SA A2 submitted the lowest bid (€2,496,954.82 excl. VAT), within SOFICO's estimate range (€2.165M-€4.15M). The Price Bureau could not advise due to the novel contract type. SOFICO conducted an empirical price analysis and requested price justifications from A2 in September 2021. A2 provided detailed justifications which were accepted for some posts but rejected for others due to supposedly inflated productivity rates. Over 18 months later (March 2023), SOFICO set specific performance thresholds — a maximum 18,000 m²/hour/person for post 81 and a minimum 32-hour duration for post 82 — claiming these derived from tender document data. A2's bid was declared irregular and the contract awarded to SA Krinkels. The Council had previously suspended the decision (judgment 257.136). Neither SOFICO nor Krinkels requested continuation of proceedings, triggering the shortened annulment procedure. The Council confirmed that the thresholds had been set retroactively, modifying tender requirements in violation of transparency and patere legem quam ipse fecisti.
Why does this matter?
This ruling sets limits on price examination: contracting authorities cannot retroactively convert estimated data from tender documents (estimated durations, surface areas) into mandatory minimum thresholds whose breach triggers bid rejection. Such thresholds must be clearly announced in advance. When a rejection decision rests on multiple grounds combined, a serious flaw in one ground vitiates the entire decision.
The lesson
As contracting authority: if using numerical data as reference thresholds in price examination, announce this clearly in tender documents beforehand. Do not retroactively convert estimated durations into mandatory minimums. As tenderer: provide maximally detailed price justifications from the first request. If the authority opposes thresholds not announced in tender documents, challenge their retroactive character.
Ask yourself
Were the performance thresholds used to evaluate prices clearly announced in tender documents as minimum requirements? Could tenderers know these thresholds when preparing their prices? Does the price analysis rest on objectively established data or retroactive assessment?
About this database
The Council of State (Raad van State / Conseil d'État) is Belgium's supreme administrative court. In disputes over public procurement — from contract awards to tenderer exclusions — the Council of State is the final arbiter. The rulings in this database are summarised by TenderWolf in plain language, with practical lessons for tenderers and contracting authorities. View all rulings →